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txinvestigator

ThunderDownUnder wrote:TX....Gator ,

Clairifications:
RE: Prohibited. Sorry , that's my loose definition. Meaning that a handgun is generally prohibited to carry (as in a UCW charge) unless the old "defenses to prosecution/ does not apply" reasons come into play.

I see what you mean now; however, prohibited weapons are a different part of the PC, and are illegal to even possess.

RE: LEO ID of someone with a handgun.
I think we are talking semantics here and my too brief statement was misunderstood. My point is that if a LEO makes contact with a CHL, if the CHL is carrying a handgun, when the LEO asks for ID, proof of Finc. Respons./insurance at a traffic stop, the CHL must display the CHL or face possible suspension.
The point I was attempting to make is that a non-CHL/traveler would not be required to tell the LEO that they are carrying a handgun/firearm in the car. And most LEO's usually don't ask the average person if they have any weapons in the car. My police friends see this as a "reverse standard".
I have to agree. This has caused a number of LEO's to warm up to the idea of CHLs.

This I agree with.

RE: The topic of the gun-free drug free school zone and UCW comes from 46.11 and definitions in Health and Safety code 481.134.
Basically, if a UCW takes place within 300 ' of school property, activities, etc. then the Class A UCW gets bumped up to a 3rd degree felony.
This is mentioned on page 38 of the the DPS CHL Laws book 2003-2004 edition.

Yep, just like UCW where alcohol is served/sold is a felony rather than a class A. And just to be accurate, UCW within a gun free school zone is the next class higher, on this case a State Jail Felony. And it has to be proven that the person knew he was within 300 feet of the premises of a school.

Sure you could make the current traveling arguement, but there are ADA's in Harris, Travis, Dallas, Collin and Denton counties just waiting to get a test case in a weapon-free school zone. Trust me, please.

I have not heard statements from any other than Harris County, but your advice of caution is right on.

txinvestigator

ThunderDownUnder wrote:
A handgun is still a "prohibited weapon".

No, it is not. The penal code (46.02) makes it unlawful to carry a handgun on or about your person under many conditions. Section 46.15 describes when 46.02 does not apply.

Handgun carriers (non-CHLs) do not have to ID themselves to LEOs. CHLs do.

Not really. A person lawfully carrying under a non-applicability other than under 46.15 (b) 6 is not required to inform a LEO he is carrying when simply asked to Identify himself. A CHL holder must present both his CHL and either a TExas DL or ID card IF a LEO demands ID.

What does a handgun transporter/traveler do when they drive on a public street within 300' of school property ? Sounds like a 3rd degree felony to me.

Where so you see that?

What about when the handgun carrier (non-CHL)drives into a parking lot that has a no guns sign posted? Sounds like a Class A to me.

Agreed. If a person is carrying under the traveling non-applicability and drives where there is a no guns sign posted, the person could be trespassing. That would then be a violation of one of the traveling presumptions and the person would be UCW.

txinvestigator

cxm wrote:The difficulty here is the fact carry without a license is still a crime... it should n't be... but it is...

NO, its not.

The penal code lists MANY times where "carry without a license" is not a crime.

Section 46.15, which is in its entirety below, clearly shows that the law making carrying a handgun on or about your person DOES NOT APPLY to a person who is; on his own premises or premises under his control, traveling, engaged in a lawful sporting activity in which the handgun is commonly used, is a commissioned security guard and is performing guard duties, possesses a CHL, and others.

These are ALL listed as having section 46.02 not applicable. Carrying a handgun while traveling is no more illegal than carrying one with a CHL. A person with a CHL COULD be arrested if the officer wanted to be a jackass. Same as a person who meets the presumption of traveling.

The issue is many sworn to uphold the law have decided that their own personal belief is what they will enforce, rather than the law.

Text
Â§46.15. Nonapplicability.

(a) Sections 46.02 and 46.03 do not apply to:

(1) peace officers, including commissioned peace officers of
a recognized state, or special investigators under Article 2.122,
Code of Criminal Procedure, and neither section prohibits a peace
officer or special investigator from carrying a weapon in this state,
including in an establishment in this state serving the public,
regardless of whether the peace officer or special investigator is
engaged in the actual discharge of the officer's or investigator's
duties while carrying the weapon;

(2) parole officers and neither section prohibits an officer
from carrying a weapon in this state if the officer is:

(A) engaged in the actual discharge of the officer's duties
while carrying the weapon; and

(B) in compliance with policies and procedures adopted by the
Texas Department of Criminal Justice regarding the possession of a
weapon by an officer while on duty;

(3) community supervision and corrections department officers
appointed or employed under Section 76.004, Government Code, and
neither section prohibits an officer from carrying a weapon in this
state if the officer is:

(A) engaged in the actual discharge of the officer's duties
while carrying the weapon; and

(B) authorized to carry a weapon under Section 76.0051,
Government Code;

(4) a judge or justice of the supreme court, the court of
criminal appeals, a court of appeals, a district court, a criminal
district court, a constitutional county court, a statutory county
court, a justice court, or a municipal court who is licensed to carry
a concealed handgun under Subchapter H, Chapter 411, Government
Code; or

(5) an honorably retired peace officer or federal criminal
investigator who holds a certificate of proficiency issued under
Section 1701.357, Occupations Code, and is carrying a photo
identification that:

(A) verifies that the officer honorably retired after not
less than 20 years of service as a commissioned officer; and

(B) is issued by the agency from which the peace officer
retired or, for a federal criminal investigator, by a state law
enforcement agency.

(b) Section 46.02 does not apply to a person who:

(1) (As added by L.1997, chap. 1221(4). See other paragraph (1)
below.) is in the actual discharge of official duties as a member of
the armed forces or state military forces as defined by Section
431.001, Government Code, or as an employee of a penal institution
who is performing a security function;

(1) (As added by L.1997, chap. 1261(28). See other paragraph
(1) above.) is in the actual discharge of official duties as a member
of the armed forces or state military forces as defined by Section
431.001, Government Code, or as a guard employed by a penal
institution;

(2) is on the person's own premises or premises under the
person's control unless the person is an employee or agent of the
owner of the premises and the person's primary responsibility is to
act in the capacity of a security guard to protect persons or
property, in which event the person must comply with Subdivision (5);

(3) is traveling;

(4) is engaging in lawful hunting, fishing, or other sporting
activity on the immediate premises where the activity is conducted, or
is directly en route between the premises and the actor's residence,
if the weapon is a type commonly used in the activity;

(5) holds a security officer commission issued by the Texas
Board of Private Investigators and Private Security Agencies, if:

(A) the person is engaged in the performance of the person's
duties as a security officer or traveling to and from the person's
place of assignment;

(B) the person is wearing a distinctive uniform; and

(C) the weapon is in plain view;

(6) is carrying a concealed handgun and a valid license
issued under Article 4413(29ee), Revised Statutes, to carry a
concealed handgun of the same category as the handgun the person is
carrying;

(7) holds a security officer commission and a personal
protection authorization issued by the Texas Board of Private
Investigators and Private Security Agencies and who is providing
personal protection under the Private Investigators and Private
Security Agencies Act (Article 4413(29bb), Texas Civil Statutes); or

(8) holds an alcoholic beverage permit or license or is an
employee of a holder of an alcoholic beverage permit or license if the
person is supervising the operation of the permitted or licensed
premises.

(c) The provision of Section 46.02 prohibiting the carrying
of a club does not apply to a noncommissioned security guard at an
institution of higher education who carries a nightstick or similar
club, and who has undergone 15 hours of training in the proper use of
the club, including at least seven hours of training in the use of the
club for nonviolent restraint. For the purposes of this subsection,
"nonviolent restraint" means the use of reasonable force, not intended
and not likely to inflict bodily injury.

(d) The provisions of Section 46.02 prohibiting the carrying
of a firearm or carrying of a club do not apply to a public security
officer employed by the adjutant general under Section 431.029,
Government Code, in performance of official duties or while traveling
to or from a place of duty.

(e) The provisions of Section 46.02 prohibiting the carrying
of an illegal knife do not apply to an individual carrying a bowie
knife or a sword used in a historical demonstration or in a ceremony
in which the knife or sword is significant to the performance of the
ceremony.

(f) Section 46.03(a)(6) does not apply to a person who
possesses a firearm or club while in the actual discharge of official
duties as:

(1) a member of the armed forces or state military forces, as
defined by Section 431.001, Government Code; or

(2) an employee of a penal institution.

(g) (As added by L.2003, chap. 795(1). See other subsection (g)
below.) In this section, "recognized state" means another state with
which the attorney general of this state, with the approval of the
governor of this state, negotiated an agreement after determining that
the other state:

(1) has firearm proficiency requirements for peace officers;
and

(2) fully recognizes the right of peace officers commissioned
in this state to carry weapons in the other state.

(g) (As added by L.2003, chap. 421(1). See other subsection (g)
above.) For the purpose of Subsection (b)(2), "premises" includes a
recreational vehicle that is being used by the person carrying the
handgun, illegal knife, or club as living quarters, regardless of
whether that use is temporary or permanent. In this subsection,
"recreational vehicle" means a motor vehicle primarily designed as
temporary living quarters or a vehicle that contains temporary living
quarters and is designed to be towed by a motor vehicle. The term
includes a travel trailer, camping trailer, truck camper, motor home,
and horse trailer with living quarters.

and 46.15 (i)Â§46.15 (i)

(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.

txinvestigator

ElGato wrote:I started to read the Nov./Dec. TSRA journal just a few minutes ago Granny is on the cover and in the legislative report this, "a member who lives in Houston left home with his handgun in a closed ammo box in the back floorboard of his car. He was on his way to visit his mother in Timpson, and he took his handgun to do some target pratice. Timpson is in rural northeastern Texas, not far from Nacogdoches and many counties away from Harris County and Houston.

Before he got out of Harris County, he was in an accident and the attending law enforcement officer searched his vehicle, found the handgun in the closed ammo box, and the man was arrested and charged with a Class A misdemeanor. He did not have a CHL."

Alice Tripp goes on for several more paragraphs about the fact that this should not have happened and of course we know she's right. I don't know what we can do about it.

I guess we have our test case.

Tomcat

I wonder when the accident happened? Why would a LEO search a vehicle involved in an accident? Was the driver charged with another crime?

txinvestigator

EricS76 wrote: My girlfriend took her class in the middle of October, and they talked about it for 30 minutes or so. Her instructor basically said the law was a 'feel good' law, and it really didn't change anything from the previous law EXCEPT that the burden of proof was shifted from the defense to the prosecution. He talked about the Harris Co. DA who refused to even acknowledge the law had changed, and the assistant Bexar Co. DA was there to give a speach and said that they would review each case and if there was enough proof that the person was not traveling, Bexar Co. would prosecute. He said basically the change in the law has made them look closer at each case and they now must have a almost clear-cut case before they take it to court.

So basically, it makes it easier to get off the charges if a person were to get arrested, but there is still the chance that a person could get arrested. So technically, the statement "now anyone who can legally own a gun can carry one in their vehicle without a CHL" is not true.

The good news is that if you are truely "traveling", you shouldn't have a problem with the law, in it's new form or old form.

Actually that was the opinion of the instructor, one I (as an instructor) don't share. The law is clear, if a person meets the requirments of the presumption, then the person IS traveling. A person traveling is under no more legal authority of being arrested than a person with a CHL. In fact, both travelers and CHL holders get their authority to carry from the same law, section 46.15 of the Texas Penal Code. and traveling is listed BEFORE CHL holders.

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